We state the facts in the light most favorable to defendant. See Brown v. J.
C. Penney Co., 297 Or 695, 705, 688 P2d 811 (1984) (on review of denial of a directed
verdict, we consider all the evidence and view it in the light most favorable to the
nonmoving party). In June 1996, plaintiff and her two daughters accompanied defendant
and friends to Triangle Lake for recreational boating and fishing. Defendant drove an
Isuzu Trooper and pulled a trailer carrying a small boat. Defendant parked the vehicle
approximately 20 feet from the lake in a gravel lot that sloped slightly toward the water.
The vehicle was left in that location, facing the lake, throughout the outing.

The group of friends spent at least two hours at the lake. At the end of the
outing, members of the group carried the boat back to its trailer and began to load the
vehicle for departure. Defendant was at the rear of the trailer, changing clothes, and the
other members of the party were nearby. Plaintiff, who was loading items into the open
back door of the vehicle, told her five-year-old daughter to get into the vehicle because
they were about to leave. The child entered through the open driver's-side front door and,
two to three seconds later, the vehicle began to roll forward toward the lake.

Defendant Mark Adkins moved for a directed verdict, arguing that the
evidence fails to establish that he should be vicariously liable under the family purpose
doctrine. The court denied that motion. At the close of the evidence, plaintiff moved for
a partial directed verdict, arguing that defendant was negligent, as a matter of law,
because he violated the requirements of ORS 811.585(1) and had failed to present
evidence from which a jury could find that his conduct was nevertheless reasonable under
the circumstances. The trial court denied that motion as well. Later, the trial court
instructed the jury that

"[negligence per se] consists of the violation of a statute that for the safety
or protection of others requires certain conduct or forbids certain conduct.

"When I call your attention to any such statute, a violation of that
statute by a party constitutes negligence in and of itself unless you find from
all the evidence that such party proved that he was acting as a reasonably
prudent person under the circumstances."

The court then instructed the jury as to the substance of ORS 811.585(1) and further
instructed that the definition of highway, for purposes of that statute, includes a public
parking lot. The jury was given a four-question verdict form. The court instructed the
jury that, if it answered the first question in the negative, it should not answer the others.
The first question was: "Were defendants negligent in one or more of the ways alleged in
plaintiff's complaint and, if so, was such negligence a cause of damage to plaintiff?" The
jury answered "no." In light of that answer, the jury did not answer the remaining
questions on the verdict form. Consistently with the jury's verdict, the trial court entered
judgment in favor of defendants.

Defendant responds that plaintiff failed to argue to the trial court that the
the vehicle was unattended as a matter of law, that the trial court therefore correctly
denied plaintiff's motion, and that plaintiff improperly advances that argument for the first
time on appeal. We agree. We consistently have emphasized the two fundamental
purposes underlying appellate preservation of error requirements:

"First, the requirement that an issue be presented to the lower tribunal in
order for it to be raised on appeal serves to prevent error. If the first
tribunal is given the opportunity to make a ruling, its ruling may well be
correct. Relatedly, it would be a disservice to the economy of the process to
require the lower tribunal to conduct further proceedings in order to rectify
an error that it was never given the initial opportunity to avoid.

"The second reason is that requiring a party to present its issues at
each adjudicative level is essential to a fair process for the other parties and
participants. Generally, the opportunity to respond at the appellate level
does not cure the denial of that opportunity in trial court and agency
proceedings, where all of the factual and much of the legal development of
cases must occur."

In making the motion below, plaintiff summarily argued that she was
entitled to a directed verdict on the issue of whether the statute was violated because
defendant admitted that the parking lot was sloped, he admitted that he did not turn the
vehicle's wheels to one side, and he did not recall setting the parking brake. Plaintiff did
not assert that, as a matter of law, the evidence also established that the vehicle was
unattended, as the statute requires. Immediately before plaintiff moved for a partial
directed verdict, the parties and the court discussed the instructions that the court would
give regarding the statute's requirements. Defendant argued that the jury should decide,
among other disputes, whether the vehicle was "unattended" as the statute requires.
Plaintiff voiced no disagreement. The court specifically concluded that whether the
vehicle was unattended was a question to be decided by the jury. After those discussions
of the jury instructions, plaintiff moved for a partial directed verdict and did not assert, as
she does now, that the evidence established as a matter of law that the vehicle was
unattended. Under the circumstances, plaintiff's position in that regard not only is
unpreserved but, arguably, was affirmatively waived. In all events, we will not consider
her expanded argument for the first time on appeal. Given the trial court's determination
that a jury question was presented on the issue of whether the vehicle was unattended, and
plaintiff's failure to disagree on that point, denial of the motion for partial directed verdict
was proper.

In her second assignment of error, plaintiff contends that defendant did not
produce enough evidence to support an instruction to the jury that, in determining
whether defendant was negligent, it could consider whether defendant acted reasonably
notwithstanding any violation of the statute. Plaintiff's position is that to support such an
instruction, a defendant must come forward with evidence that the defendant violated the
statute due to circumstances beyond his control or circumstances that provide some
similar justification for the violation. Defendant, in response, asserts that plaintiff has
unduly restricted the evidence that can give rise to a jury question on the issue.
According to defendant, a defendant's burden is satisfied if the defendant produces
evidence of any reasonable, plausible explanation for violating a statute.

Contrary to plaintiff's position, nothing in Barnum or the cases decided in
its wake requires that a defendant be unable to comply with a statutory requirement as a
result of an emergency or other extenuating circumstance. Barnum specifically
disavowed any such limitation:

"We consider the present state of the law to be that if a party is in
violation of a motor vehicle statute, such a party is negligent as a matter of
law unless such party introduces evidence from which the trier of fact could
find that the party was acting as a reasonably prudent person under the
circumstances. We so hold regardless of whether the circumstances do or
do not include facts which the law regards as an emergency."

We therefore turn to the evidence in this case to determine whether it was
such that a jury could find defendant's conduct to be reasonable under the circumstances.
Because the issue here involves the correctness of the instruction that defendant requested
and that the trial court gave, we view the evidence in the light most favorable to the
giving of the instruction. See State v. Boyce, 120 Or App 299, 302, 852 P2d 276 (1993).

As we earlier described, defendant allegedly violated the statute by leaving
his vehicle unattended without setting its emergency brake and by leaving it on a slight
slope without turning the vehicle's front wheels "to the curb or side of the highway," the
latter of which the statute requires when a vehicle is left on "any grade." ORS
811.585(1)(a)(B) and (E). Here, the evidence is undisputed that defendant did not turn
the front wheels of the vehicle. The evidence also is undisputed that the area of the
parking lot where defendant left his vehicle was gently sloped and that defendant could
not recall setting the parking brake. On that basis, plaintiff argues that defendant's
conduct amounted to nothing more than an "uncompelled, deliberate violation of the
statute" that, without more, will not permit a jury to find that the violation of the statute
was reasonable. SeeCervantes, 90 Or App at 577.

The record, however, permits an inference more favorable to defendant than
plaintiff describes. We begin with defendant's conduct in failing to turn his vehicle's
wheels to one side. At the outset, it is worth emphasizing that defendant parked his
vehicle in a public parking lot, not to the side of a public road. Granted, the statute's
application to "highways" encompasses this public parking lot. See ORS 801.305
(defining highway to include public places open and used by the public for vehicles or
vehicular traffic as a matter of right). But the fact that the vehicle was in a parking lot is
important because the statutory requirement of turning a vehicle's front wheels "to the
curb or side of the highway" takes on uncertain significance in that setting. As the
testimony and photographs of the area demonstrate, no curbs existed. The parking lot
was a large, open space consisting mostly of gravel and grass with ill-defined borders.
Arguably, the wheels were pointed in the direction of one of the parking lot's several
"sides" no matter which direction they faced. Indeed, plaintiff's own expert witness, who
described steps that should be taken in a parking lot to avoid movement of an unattended
vehicle, agreed that he would not turn his wheels in an area of that kind. No other
witness testified that turning the front wheels of defendant's vehicle would have
prevented the vehicle from rolling. Thus, although the evidence established that
defendant did not "turn" the wheels of his vehicle, the jury was not obligated to find that
the failure to do so was a statutory violation in this circumstance. Alternatively, even if
the jury found a violation, the jury might view the statute's requirements in such a setting
to be too uncertain to view defendant's conduct as amounting to a deliberate or knowing
disregard of the statute's requirements. Finally, based both on the testimony and the jury's
common experience, it might find that compliance with the statute in such an area would
not prevent a vehicle from rolling.

Even if defendant's failure to turn his wheels technically violated the
statute, the evidence gave rise to a factual question as to the reasonableness of his conduct
in not doing so for a second reason. The parking lot was sloped; there is no dispute on
that point. On this record, however, a factual question existed as to whether a reasonable
person would perceive it to be sloped. Defendant's expert witness, a professional
surveyor, measured the area as having less than a two-degree slope, which he described as
"very little" and "[v]ery minor per foot." Several witnesses, including defendant,
described the area as visually flat. Defendant specifically testified that, at the time in
question, he was unaware of the parking lot's slope and that, when he pulled up and
parked there, the area where he parked appeared "really pretty flat. I mean flat." Other
witnesses testified similarly, and the evidence included photographs of the area from
which the jury could draw its own conclusions. In faithfulness to our obligation to give
defendant the benefit of that evidence and any and all inferences that it reasonably could
support, we must conclude that a jury could find that the area was sufficiently flat that a
reasonable person would not perceive its slight slope and would not understand the
statute's wheel-turning requirement to apply.

For all of those reasons, this simply is not a case, as plaintiff attempts to
characterize it, in which the only inference to be drawn from the evidence was that
defendant consciously disregarded the statute's requirements and any harm that might
come from a violation. Rather, giving defendant the full benefit of the evidence, the jury
could conclude that a reasonable person in these circumstances would not--as defendant
did not--turn the vehicle's wheels.

The remaining issue is whether defendant presented sufficient evidence to
create a jury question on the reasonableness of his conduct in not setting the emergency
brake. As a threshold matter, the parties dispute whether the only conclusion that the jury
could draw on this record is that defendant did not set the brake or whether the jury could
find that the evidence on the point failed to establish what action defendant took in that
regard. At the time of trial, when asked if he set the emergency brake, defendant's answer
was "I honestly don't know." He confirmed several times that he could not remember.
Defendant did acknowledge, however, that in a prior deposition, when asked if he had set
the emergency brake, he had answered, "My recollection, no, I didn't."

For present purposes, we are willing to assume that the only reasonable
conclusion for the jury to draw on this record was that defendant did not set the
emergency brake. (7) Even with that assumption, however, our standard of review requires
us to give defendant the most favorable view of the record possible. So viewing it,
defendant's recollection was hazy and he had a limited memory of whether he set the
emergency brake. He was certain, however, that he had placed the vehicle in first gear.
As he further testified, he did not think that an emergency brake had to be set when a
vehicle was parked on flat ground. At the least, a jury could conclude from the evidence
that defendant did not make a conscious and deliberate choice not to set the emergency
brake and that he consciously did take the precautionary step of placing the transmission
in first gear. There was ample testimony by lay and expert witnesses alike that, under
those circumstances, leaving the vehicle parked in first gear would prevent it from rolling.
Indeed, the evidence is undisputed on that point. Even plaintiff's own witness agreed that
the only way the vehicle would roll with the transmission set in first gear is if someone
took it out of gear.

From that evidence, the jury could find all of the following: Defendant
parked his vehicle in an area that he reasonably thought was flat; defendant did not set his
emergency brake; defendant's conduct in not setting the emergency brake was one of
inadvertence rather than conscious and deliberate decision to forgo setting it; that
defendant, although inadvertently failing to set the brake, deliberately took an alternative
safety measure that was fully adequate to prevent the vehicle from rolling and that in fact
did prevent it from rolling for two to three hours until someone other than defendant took
the transmission out of gear.

Our decision in Torres v. Pacific Power and Light, 84 Or App 412, 734 P2d
364, rev dismissed 304 Or 1 (1987), is much closer to this case than is Cervantes. In
Torres, a utility "safety watcher" failed to comply with state safety regulations that
required him to keep a continuous and uninterrupted watch over workers in situations in
which their close proximity to power lines and similar electrical hazards might endanger
them. The rules further provided that a safety watcher must not be distracted or leave the
vicinity without stopping the work or putting someone else on safety watch. The case
arose because a safety watcher standing three feet away from the plaintiff became
distracted and looked away while the plaintiff attempted to thread a metal rod into a
section of fence. The plaintiff inadvertently touched the rod to an energized electrical bus
bar and was seriously injured by electrical shock.

The safety watcher in Torres could not recall specifically what distracted
him from his watch; he knew only that some other activity or concern at the electrical
plant drew his attention. We concluded that, as a matter of law, the safety watcher's
conduct violated the safety regulations. Id. at 416-17. We further concluded, however,
that the reasonableness of the safety watcher's conduct was properly submitted to the jury
based on the evidence that, when the distraction occurred, the plaintiff was not holding
anything that could contact the energized bus bar and that the safety watcher had warned
the plaintiff about the energized bus bar several times during the day. Id. at 417.

In our view, this case not only is analogous to Torres, but it presents
stronger facts for a jury question on the reasonableness of defendant's conduct. Viewing
the record most favorably to the giving of the challenged instruction, defendant not only
reasonably believed--due to the seemingly flat parking lot--that there was little chance of
the vehicle rolling, he took affirmative action to prevent it from doing so, in the form of
an alternative safety measure. The jury could find on this record that the alternative
measure was fully adequate to prevent the vehicle from rolling, at least without the
intervention of someone else's action. This case is also stronger than Torres and
distinguishable from Cervantes by virtue of defendant's belief--one that a jury might
consider reasonable even if legally wrong--that an emergency brake did not have to be set
when leaving a vehicle in what he reasonably perceived to be a flat parking lot. And
finally, this case differs from Cervantes and is like Torres because, here, a jury could
conclude that defendant did not act deliberately and that, instead, he unwittingly failed to
set the vehicle's parking brake.

At issue in this case is the extent to which a defendant may rebut a
presumption of statutory negligence. In Barnum v. Williams, 264 Or 71, 78, 504 P2d 122
(1972), the Supreme Court stated that:

"We consider the present state of the law [of negligence per se] to be
that if a party is in violation of a motor vehicle statute, such a party is
negligent as a matter of law unless such party introduces evidence from
which the trier of fact could find that the party was acting as a reasonably
prudent person under the circumstances."

The court imposed no limitations on the sort of evidence on which a defendant may rely
in rebutting the presumption of negligence; said another way, the court articulated no
category of conduct that is, as a matter of law, unreasonable.

Both the lead opinion and the dissent nevertheless assert that there exist
such categories of conduct that are unreasonable as a matter of law. The lead opinion
asserts that an "uncompelled, deliberate" violation of a statute is such a category of
conduct that is unreasonable as a matter of law. The dissent asserts that, unless a
defendant can produce evidence of a "legitimate excuse," such as a distraction or some
other external event, the conduct is unreasonable as a matter of law.

With respect, I think that both the lead opinion and the dissent are mistaken.
The creation of limits on the type of evidence that a jury can consider in determining the
reasonableness of a defendant's conduct in a negligence per se case cannot be reconciled
with Barnum, which mentions no such limits. Moreover, the creation of such limits
cannot be reconciled with subsequent Supreme Court case law, in particular, James v.
Carnation Co., 278 Or 65, 862 P2d 1192 (1977).

In James, the plaintiff drove her automobile into the rear of the defendant's
disabled truck, which was parked in a paved area to the right of three lanes marked for
normal traffic on Highway 26, without any emergency lights on. The plaintiff claimed
that the defendant's failure to turn on its emergency lights amounted to negligence per se,
while the defendant claimed that the plaintiff's failure to stay in a lane of traffic
constituted negligence per se. The plaintiff attempted to offer evidence--including still
photos and a movie--that, at that point on the highway, motorists commonly veered from
the marked lane of traffic and into the area across the fog line. The defendant objected to
the admissibility of the evidence. The Supreme Court held that the evidence was
admissible. The court acknowledged that, in a prior decision, it had held such evidence
inadmissible, but it held that Barnum changed things:

"In Savage, Adm'x v. Palmer et al, 204 Or 257, 272, 280 P2d 982
(1955), we held that evidence showing others to have violated certain traffic
control signs was not relevant to the issue of whether the defendant was
liable in a negligence action because of a violation of the same traffic
control signs. At the time Savage was decided, the violation of the statute
was considered to be negligence per se. The violation of a safety statute
now carries the presumption of negligence but the party so charged may
overcome the presumption by offering evidence of reasonable conduct."

James, 278 Or at 78. Thus, in James, the court held that a defendant may rely on
evidence of custom in attempting to establish the reasonableness of its conduct, whether
or not the conduct was deliberate or subject to a "legitimate excuse."

In asserting that a deliberate decision to violate a traffic statute cannot be
reasonable as a matter of law, the lead opinion relies on our decision in Cervantes v.
Mattson, 90 Or App 574, 577, 752 P2d 1293 (1988). That is, indeed, what Cervantes
says. The problem is that that decision cannot be squared with either Barnum or James
and should be overruled.

In asserting that, in the absence of a "legitimate excuse," a violation of a
traffic statute is negligence as a matter of law, the dissent relies on prior decisions of this
court in which legitimate excuses were held sufficient to create a jury question. To begin
with, it does not follow that, because prior cases regarded certain evidence as sufficient,
that evidence is necessary. Moreover, at least one of those prior cases, Torres v. Pacific
Power and Light, 84 Or App 412, 734 P2d 364 (1987)--to say nothing of Barnum and
James--cannot be reconciled with the dissent's proposed rule.

In Torres, the plaintiff was injured while installing a chain link fence when
he lifted a metal tension rod overhead and the rod touched an electric power source. He
claimed that the defendant, his employer, was negligent per se, because the employer
violated a safety rule requiring the "safety watcher" to maintain a constant watch during
the installation. The employer offered evidence that the safety watcher had been
distracted at the moment of the accident. It also offered evidence that, at the time the
safety watcher turned away, the plaintiff was not holding anything that could contact the
power source. Finally, there was evidence that the safety watcher had warned the
plaintiff about the power source several times during the day. We concluded that all of
that evidence--not just the distraction--was sufficient to create a jury question as to the
reasonableness of the employer's conduct. Id. at 417.

In short, Barnum imposes no qualifications on the type of evidence on
which a defendant may rely in proving the reasonableness of conduct that violated a
traffic statute, and I would not create any such qualifications.

Plaintiff's complaint alleged that defendant was negligent in various
respects in parking and leaving the vehicle unattended. The trial court instructed the jury
that:

"[Negligence per se] consists of the violation of a statute that for the safety
or protection of others requires certain conduct or forbids certain conduct.

"When I call your attention to any such statute, a violation of that
statute by a party constitutes negligence in and of itself unless you find from
all the evidence that such party proved that he was acting as a reasonably
prudent person under the circumstances."

According to plaintiff, the evidence did not support giving the portion of the instruction
that permitted the jury to determine if defendant was acting as a reasonably prudent
person under the circumstances. Defendant disagrees. The parties each rely on Barnum
v. Williams, 264 Or 71, 504 P2d 122 (1972), in support of their respective positions. In
Barnum, the court considered the present state of the law to be

"that the violation of a motor vehicle statute creates a presumption of
negligence. When the evidence establishes that a party has violated a motor
vehicle statute, such a party has the burden of producing evidence that,
nevertheless, he was acting reasonably. * * *

"If the party having such burden produces no evidence of reasonable
conduct or the court finds the evidence produced is insufficient to prove
reasonable conduct, the court must find the party negligent as a matter of
law. If the party produces evidence which the court determines raises a
question of fact whether the party acted reasonably, despite violation of the
statute, then, the question of the party's negligence is for the jury." Id. at 79.

The lead opinion acknowledges, at least for purposes of argument, that the
evidence established without contradiction that defendant violated the statute by failing to
set the parking brake when he parked his vehicle. However, it accepts defendant's
premise that his explanation for his failure to comply with the statute was sufficient to
permit the jury to consider its reasonableness. Defendant argues that, assuming the
parking brake was not set, the violation is explained by the fact that the parking lot was
nearly flat and the vehicle was put into first gear to prevent it from rolling. Plaintiff
contends, on the other hand, that the question of whether a defendant's unlawful conduct
nonetheless was reasonably prudent should be decided by a jury only if the defendant's
evidence provides a legitimate excuse for not complying with the statute. According to
plaintiff, the evidence in this case did not establish such an excuse. Plaintiff is correct.

Most nearly on point is our decision in Cervantes v. Mattson, 90 Or App
574, 752 P2d 1293 (1988). In Cervantes, the defendant attempted to pass the plaintiff's
vehicle on the left at a T-intersection. The plaintiff turned at the intersection, and the
vehicles collided. The plaintiff alleged negligence per se, based on the defendant's
violation of the statute prohibiting passing at an intersection. The defendant did not
dispute that he had violated the statute. Instead, he produced evidence that the plaintiff
did not signal before turning, that the road was clear, dry, and straight, that there was no
oncoming traffic, and that the intersecting road was a minor residential road connecting to
a major highway. We held that the defendant had not presented sufficient evidence to
show that his conduct was reasonable.

"[W]e cannot agree * * * that a person who has violated a traffic safety
statute can rebut the presumption of negligence by evidence which shows
nothing more than that he 'reasonably' thought that no harm would result
from his uncompelled, deliberate violation of the statute.

"* * * [D]ecisions subsequent to Barnum have explained that the
'presumption of negligence becomes conclusive, absent any "adequate
explanation" for the violation of the statute.' Defendant offered no adequate
explanation for violating the statute. His explanation, instead, was that his
violation occurred under circumstances which made injury less likely
[than] if he had committed the same violation under different
circumstances. He failed to rebut the presumption of negligence, and the
trial court erred by denying plaintiff's motion for a directed verdict on
liability." Cervantes, 90 Or App at 577-78 (citation omitted, first emphasis
in original, second emphasis added).

An excuse for a statutory violation that warrants jury consideration of the
reasonableness of the defendant's conduct must show, if believed, that the violation
occurred without the defendant's fault. In Gray v. Lahl, 284 Or 111, 585 P2d 664 (1978),
the defendant admitted at trial that an injury-producing accident occurred because, in
violation of former ORS 483.444, repealed by Or Laws 1983 ch 338 � 978, his truck's
brakes were defective. In light of the undisputed statutory violation, the court held that,
in order to create a jury issue, "defendant must show a 'legitimate excuse' for [the]
statutory violation, as by testimony that the failure of the brakes was sudden, unexpected
and without previous warning." Id. at 117. Because the defendant offered no such
evidence, the court held that the trial court erred in denying the plaintiff's motion for a
directed verdict on the issue of liability. Id. at 117-18.

By contrast, in the following cases, the court held that excuses showing that
the defendant failed to comply with a statute through no fault of his or her own were
legitimate and, thus, were sufficient for jury consideration. See Weitzel v. Wingard, 274
Or 185, 190, 546 P2d 121 (1976) (holding that the defendant's excuse that he was on the
wrong side of the road because of the defective condition of his vehicle was sufficient for
jury consideration; the evidence permitted the jury to find that the defendant was not at
fault for the defective condition); Freund v. DeBuse, 264 Or 447, 451, 506 P2d 491
(1973) (holding that evidence that the defendant had attempted to maintain brakes was
sufficient to allow jury to consider reasonableness of violation of statute requiring
defendant to maintain brakes); Mariman v. Hultberg, 82 Or App 535, 539, 728 P2d 919
(1986) (holding that the defendant's evidence that snow on road thwarted his attempt to
avoid crossing center line was sufficient to allow jury to determine whether conduct in
violation of statute requiring driver to remain on right-hand side of road was reasonable).

"A. Any number of things could have drawn my attention because I was
responsible for the plant. I was responsible for three men on the deck. It
was my idea to know where all three were. I could see two. The change in
the hum of the transformer would have drawn my attention. A bug in the
generator would have drawn my attention. If someone were to drop a
wrench on the deck it would have drawn my attention.

"Q. Did any of those things occur to the best of your recollection?

"A. I would say the best thing that could have caught my attention would
be a bump in the generator if we were running rough.

"Q. But you can't really recall today?

"A. I cannot." Torres, 84 Or App at 417.

The plaintiff moved for a directed verdict based on the safety watcher's
admitted violation of former OAR 437-84-029. The trial court denied the motion. The
court gave the jury an instruction modeled on Uniform Civil Jury Instruction (UCJI)
20.05, and the jury returned a verdict for the defendant. On appeal, the plaintiff argued
that the defendant submitted no evidence explaining why the safety watcher violated
former OAR 437-84-029 from which the jury could have found that the violation was
reasonable. We disagreed and affirmed. Although the testimony that "something" drew
the safety watcher's attention may have been only minimally sufficient, cf. id. at 418
(Rossman, J., dissenting), the safety watcher's testimony did address the reason why he
violated former OAR 437-84-029. We held that he provided a legitimate excuse for his
violation of the rule. Whether the excuse was reasonable was left for the jury to decide.

By contrast, in this case, defendant offered noevidence suggesting that he
was distracted or otherwise failed for some reason to comply with the statute through no
fault of his own. Instead, he argues that his own safety measures provided an adequate
substitute for statutory compliance. Torres does not speak to that issue at all and, for that
reason, is distinguishable from the circumstances here. Having said that, I do not pretend
that the result in Torres is easily harmonized with the other cases cited above. In
upholding jury consideration of a minimally explained distraction as a possible excuse for
violation of a safety rule, we arguably permitted the jury in Torres to speculate about the
reasonableness of the defendant's conduct, something we had not done before nor have
we done since. If factual differences were not sufficient to reconcile the cases, I would
repudiate Torres, because it represents our most extreme application to date of the
"legitimate excuse" exception to the doctrine of negligence per se.

The remaining question is whether that error requires reversal. In reviewing
jury instructions, we will reverse only if we can fairly say that the instruction probably
created an erroneous impression of the law in the minds of the jury that affected the
outcome of the case. Bray v. American Property Management Corp., 164 Or App 134,
142, 988 P2d 933 (1999). Plaintiff contends that under the "we can't tell" rule of
Whinston v. Kaiser Foundation Hospital., 309 Or 350, 788 P2d 428 (1990), we must
reverse and remand. Plaintiff is correct.

In Eslamizar v. American States Ins. Co., 134 Or App 138, 894 P2d 1195
(1995), the trial court submitted to the jury two affirmative defenses, only one of which
was supported by the evidence. The jury returned a general verdict in favor of the
defendant. We reversed and remanded because we could not tell whether the jury
predicated its decision on a legally permissible basis. Id. at 147. Here, the jury could
have found that defendant did not violate the statute because, as we have already held, the
trial court did not err in denying plaintiff's motion for a directed verdict based on ORS
811.585(1). However, the trial court erroneously instructed the jury that, if it found that
defendant had violated the statute, it could consider whether defendant acted as a
reasonably prudent person under the circumstances. Because the jury returned a general
verdict finding that defendant was not negligent, we cannot tell whether the jury
permissibly decided that defendant did not violate the statute or impermissibly found that,
if defendant violated the statute, his conduct was nonetheless reasonable. Therefore, we
should reverse and remand.

I respectfully dissent.

1. The defendants are Mark and Ryan Adkins, father and son. Mark Adkins's
alleged liability is vicarious and is based on the family purpose doctrine. For ease of
reference, we use "defendant" in the singular to refer to Ryan Adkins, the defendant
whose alleged negligence was active.

2. That doctrine provides that an owner who maintains a vehicle for the
pleasure or convenience of the owner's family is liable if a member of the family
negligently uses the car for pleasure or convenience with the knowledge and consent of
the owner. Barber v. George, 144 Or App 370, 373, 927 P2d 140 (1996), rev den 324 Or
560 (1997).

3. The parties dispute whether, viewing the evidence in the light most
favorable to defendant, the record conclusively establishes that defendant did not set the
parking brake or, alternatively, establishes only that defendant could not recall. Later in
our analysis, we discuss that dispute and its significance to the issues on appeal.

5. Barnum, in turn, led to the adoption ofthe Oregon Uniform Civil Jury
Instruction (UCJI) on statutory negligence, which the challenged instruction in this case
followed. UCJI 20.05 states:

"In addition to common-law negligence, there is statutory
negligence, which consists of the violation of a statute or ordinance that, for
the safety or protection of others, requires certain conduct or forbids certain
conduct.

"When I call your attention to any such statute or ordinance, a
violation of that statute or ordinance by a party constitutes negligence in
and of itself [unless you find from all the evidence that such party proved
that (he/she) was acting as a reasonably prudent person under the
circumstances]."

The comment to UCJI 20.05 cites Barnum, observing that "[t]he bracketed phrase is
appropriate when the court rules that evidence produced is sufficient to create a question
for the jury whether the party acted reasonably despite violation of the statute." The trial
court in this case included the bracketed portion of the instruction, over plaintiff's
objection.

6. In repeatedly stating that a defendant must produce evidence to establish
that he was unable to comply with the statute through "no fault of his own," the dissent
declares a standard that assumes away, at least in part, the inquiry that Barnum entrusted
to the factfinder. ___ Or App at ___ (Brewer, J., dissenting, slip op at 5, 7, 8, 9). Under
Barnum, the question is not how the jury will or should resolve the issue of a defendant's
reasonableness. The question is only whether there is evidence from which a jury could
find that a defendant acted reasonably given all of the circumstances. The dissent does
not identify what kind of evidence will suffice to establish that a statutory violation
occurred through no fault of a defendant's own, but the clear suggestion is that the
violation must have been due to some external circumstance that was beyond a
defendant's control. If that is so, the dissent has narrowed the range of circumstances that
a jury may consider, contrary to the express holdings in Barnum and Cervantes.

7. We do so only for the sake of argument because, at trial, plaintiff took a
different view of the evidence. In making the motion for a partial directed verdict,
plaintiff asserted only that the evidence established that defendant did not recall setting
the parking brake. Plaintiff did not argue that the jury was obligated to find that the
parking brake was not set. Were the distinction significant to our analysis, we would
conclude that plaintiff's more narrow view of the evidence on appeal was not presented to
the trial court and is not preserved.

8. Judge Landau concurs on the ground that he would overrule Cervantes and
would conclude that Barnum imposes no qualifications or limitations on the type of
evidence on which a defendant may rely in proving the reasonableness of conduct that
violates a motor vehicle statute. ___ Or App at ___ (Landau, P. J., concurring, slip op at
4). Because this case is distinguishable from Cervantes, it does not provide us with an
opportunity to overrule it.

9. The dissent's effort to distinguish Torres is unpersuasive. The dissent
contends only that, in Torres, the "safety watcher's testimony did address the reason why"
he failed to keep a constant watch over the employee that he was supervising. ___ Or
App at ___ (Brewer, J., dissenting, slip op at 7) (emphasis in original). To the contrary,
the defendant in Torres admitted without qualification that he did not recall why he
became distracted. At most, he speculated as to why he may have done so. Such
testimony cannot fairly be characterized as supplying a "reason" for why his attention was
diverted. Torres simply is not meaningfully distinguishable on that or any other basis.

14. Justice O'Connell lucidly explained what he believed were the logical and
practical fallacies of the negligence per se doctrine in his dissent in McConnell v. Herron,
240 Or 486, 494-503, 402 P2d 726 (1965).